[Congressional Record Volume 152, Number 70 (Tuesday, June 6, 2006)]
[House]
[Pages H3388-H3391]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
BROADCAST DECENCY ENFORCEMENT ACT OF 2005
Mr. UPTON. Mr. Speaker, I move to suspend the rules and pass the
Senate bill (S. 193) to increase the penalties for violations by
television and radio broadcasters of the prohibitions against
transmission of obscene, indecent, and profane language.
The Clerk read as follows:
S. 193
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Broadcast Decency
Enforcement Act of 2005''.
SEC. 2. INCREASE IN PENALTIES FOR OBSCENE, INDECENT, AND
PROFANE BROADCASTS.
Section 503(b)(2) of the Communications Act of 1934 (47
U.S.C. 503(b)(2)) is amended--
(1) by redesignating subparagraphs (C) and (D) as
subparagraphs (D) and (E), respectively;
(2) by inserting after subparagraph (B) the following new
subparagraph:
``(C) Notwithstanding subparagraph (A), if the violator
is--
``(i)(I) a broadcast station licensee or permittee; or
``(II) an applicant for any broadcast license, permit,
certificate, or other instrument or authorization issued by
the Commission; and
``(ii) determined by the Commission under paragraph (1) to
have broadcast obscene, indecent, or profane language, the
amount of any forfeiture penalty determined under this
subsection shall not exceed $325,000 for each violation or
each day of a continuing violation, except that the amount
assessed for any continuing violation shall not exceed a
total of $3,000,000 for any single act or failure to act.'';
and
(3) in subparagraph (D), as redesignated by paragraph (1),
by striking ``subparagraph (A) or (B)'' and inserting
``subparagraph (A), (B), or (C)''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Michigan (Mr. Upton) and the gentleman from Massachusetts (Mr. Markey)
each will control 20 minutes.
The Chair recognizes the gentleman from Michigan.
General Leave
Mr. UPTON. Mr. Speaker, I again ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks on this legislation and to insert extraneous material on
the bill.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Michigan?
There was no objection.
Mr. UPTON. Mr. Speaker, I yield myself such time as I may consume,
and I rise in support of S. 193 the Broadcast Decency Enforcement Act
of 2005. This legislation is virtually identical to H.R. 3717, as
introduced by my good friend, Mr. Markey, Chairman Barton, Mr. Dingell,
and myself in the last Congress on January 21, 2004, which I would note
was about a week and a half before the infamous Janet Jackson/Justin
Timberlake Superbowl half-time show. That legislation was the
predecessor of H.R. 310, which the House passed in this Congress on
February 16, 2005 by a vote of 389-38.
While S. 193 omits a number of important provisions contained in H.R.
310, I believe that passage of this legislation will help us achieve
our ultimate goal, which is to help ensure American families that
broadcast television and radio programming will be free of indecency,
obscenity, and profanity at times when their children are likely to
[[Page H3389]]
be tuning in, whether that be in the living room watching TV or in the
car listening to the radio.
This is about protecting the public airwaves, and Congress has given
the FCC the responsibility to help protect American families in that
regard. The courts have upheld the constitutionality of our broadcast
decency laws, although they have limited the FCC's enforcement to only
that content which is aired between the hours of 6 in the morning and
10 at night, when children are most likely to be listening or viewing.
What compelled me to act on this, even before the infamous half-time
show, was a review of the Notices of Apparent Liability issued by the
FCC in but a few of its radio broadcast indecency cases. And, of
course, each case had a transcript of the content that was at issue.
My friends, public decorum on this floor precludes me from reading
those transcripts out loud, but what I will say is that what I read was
disgusting, vile, and had no place on our public airwaves.
I was glad to see my colleagues, Mr. Markey, Mr. Barton, former
Congressman Tauzin, and Mr. Dingell agreed with me as well. These cases
included descriptions of people having sex in Saint Patrick's
Cathedral, lewd scenes of a daughter having oral sex with her dad, and
a case in which radio hosts interviewed high school girls about their
sexual activities with crude reference to oral sex, with the sound
effects to match, and I could go on and on and on.
More recently, on March 15, 2006, the FCC issued a Notice of Apparent
Liability regarding a scene in a broadcast network program which
graphically depicted teenage boys and girls in various stages of
undress participating in a sexual orgy. Again, I will not describe
everything that was said there, but I can say that the program aired at
9:00 P.M. in the central and mountain time zones and it drew a
significant number of citizen complaints from across the country.
We have no place for that on the public airwaves. And while I am not
a lawyer, I would hope it would be beyond dispute that such content is
indecent under the law and does not belong on the public airwaves,
particularly at times when children might be viewing or listening.
In many of those most egregious cases, the radio and TV stations are
owned by huge media conglomerates, but the current statutory maximum
fine which the FCC can impose upon them for indecency violations
remains at $32,500. In the words of former FCC Chairman Michael Powell,
he said this, ``Some of these fines are peanuts. They are peanuts
because they haven't been touched in decades. They are just the cost of
doing business to a lot of producers. And that has to change.''
Well, Mr. Speaker, this legislation in fact changes that. We have a
chance to increase by tenfold the existing statutory maximum penalty
for indecency violations. The bill would raise the cap per violation
from $32,500 to $325,000.
I believe that broadcasters do have a special place in our society,
given that they are stewards of the public airwaves. And with that
stewardship comes the responsibility, including adherence to our
Nation's indecency laws. Most broadcasters are responsible, and many
recently have taken steps to redouble their commitment to keeping
indecency off the public airwaves. But for those broadcasters who are
less than responsible, the FCC needs to have the teeth to enforce the
law, and this bill, S. 193, will give the FCC that teeth.
The bottom line is this: We do not change the standards that the
courts have affirmed are permissible for the public airwaves,
particularly when children might be listening. This bill simply raises
the fine on the violators of the existing standards, and it needs to be
passed tomorrow.
Mr. Speaker, I reserve the balance of my time.
Mr. MARKEY. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I want to commend Chairman Upton for this legislation
and commend as well Chairman Barton, Ranking Member Dingell for the
cooperative bipartisan way this bill has been has been handled.
Mr. Speaker, this legislation, S. 193, is similar to legislation that
previously passed the House. It was approved by the Senate unanimously
a few weeks ago. This bill, simply put, raises the cap on possible
fines that the FCC can levy for violations of its broadcast indecency
rules from $32,500 per broadcast licensee to $325,000.
I would like to emphasize that this legislation does not make
indecent broadcast illegal, nor does the bill define what is or is not
indecent material. Indecent content aired over broadcast TV and radio
is already illegal between the hours of 6 a.m. and 10 p.m. What speech
constitutes indecent material will be left to the FCC and the courts to
determine.
Again, this legislation simply updates the statute with respect to
the amount of money that the FCC can levy as a fine for violations of
its rules, and establishes procedures for considering broadcast license
awards, renewal, or revocation when repeated violations are found.
I think this legislation has obvious broad support on both sides of
the aisle because it merely increases the amount of fines available to
the FCC to enforce its existing rules. I intend to support it, and
again commend Chairman Upton, Chairman Barton, and Ranking Member John
Dingell, and our other colleagues on this bill as well.
Mr. Speaker, I reserve the balance of my time.
Mr. UPTON. Mr. Speaker, I yield 3 minutes to the gentleman from
Oregon (Mr. Walden).
(Mr. WALDEN of Oregon asked and was given permission to revise and
extend his remarks.)
Mr. WALDEN of Oregon. Mr. Speaker, I plan to support this
legislation, as I supported the House legislation, to clear up the
public's airwaves and punish those broadcasters who violate the law and
the standards of the community that they are licensed to serve.
I am perhaps the only Member of the House of Representatives who is a
broadcast licensee. For 20 years, my wife and I have owned and operated
radio stations in Oregon. I grew up in a pioneer broadcast family. I
rise tonight, however, to express concern about the FCC's recent
decisions regarding indecency and profanity.
Frankly, the decisions of the Commission leave me and many of my
colleagues in the broadcast world a bit confused about where the
boundaries are, which has been a problem for the Commission for many
years. The Commission found that certain words, which we would find
very offensive, could be used in the context of airing Saving Private
Ryan. However, perhaps words that would be found less offensive could
not be used in an episode of NYPD Blue.
Mr. Chairman, given the tenfold increase in fines that this
legislation authorizes, I think it is exceedingly important for
broadcast licensees to have a clear understanding of the rules from the
FCC. So I would ask you to lend your good office to encourage the FCC
to achieve clarification in these areas.
I think it is also important, Mr. Speaker, that Americans understand
what we are doing here tonight only affects over-the-air public
airwaves, radio and television broadcast licensees. If you think that
the TV in your family room is suddenly going to have every program
cleaned up, you are mistaken, because we are not allowed at this point
to deal with issues involving cable television or satellite television
or satellite radio. Indeed, when we began having hearings on this very
issue of profanity in the radio broadcast spectrum, one of the
individuals who probably caused the most ruckus on the public airwaves
shifted over to satellite radio so that he could carry on there
unfettered.
I realize these are subscription services, but I think for many
Americans, when they catch cable television in their homes, they don't
really differentiate any more about the four channels that may be
public broadcast channels, over-the-air broadcasts, from those that are
on up the dial for the next 400.
{time} 2030
So they may wonder why it is that we can take this action tonight
against licensees of the Federal Government. Now, cable services do
have the ability to regulate individually within the home and block
certain programs, so perhaps parents will take it upon themselves to
self-regulate the home.
Meanwhile, broadcasters are going to need clarification when the
fines are
[[Page H3390]]
going to be increased ten-fold, and not all broadcasters are parts of
conglomerates. Some are mom-and-pop operators in small communities
across America who rise to the challenges of serving their communities
in times of natural disaster and just in terms of community events.
They will need this guidance because a fine of $32,500 today on the
books could bankrupt many of those small, independent broadcasters.
Mr. Speaker, I hope you will work to clarify this so the broadcasters
know the rules under which they need to operate and do not violate them
unintentionally.
Mr. UPTON. Mr. Speaker, will the gentleman yield?
Mr. WALDEN of Oregon. I yield to the gentleman from Michigan.
Mr. UPTON. Mr. Speaker, I look forward to working with the gentleman
to clarify the rules. It is very important that broadcasters know
precisely what the rules are. We can do a better job.
We are taking the Senate legislation as it was passed. I think we had
some better language in the House. I look forward to working with you
and other Members on both sides of the aisle to make this a bipartisan
effort and lay those ground rules out so everyone, whether it is
listeners or broadcasters, knows precisely the rules of the road and
hopefully will not get into trouble for it. I thank the gentleman for
his input all along in the process.
Mr. WALDEN of Oregon. Mr. Speaker, I thank the chairman for his
leadership in this area as we clean up the public air waves and also
come to standards that are clearly understood by all so that
inadvertent violations do not occur. And also, a recognition of small-
market broadcasters versus the big major ones where even $300,000 may
seem insignificant in their revenue stream.
Mr. MARKEY. Mr. Speaker, I yield 3 minutes to the gentlewoman from
California (Ms. Watson).
Ms. WATSON. Mr. Speaker, I rise today for the third time in 3 years
to speak out against what I consider the wrong approach to media
indecency, and that is increasing FCC fines.
S. 193, the Broadcast Decency Enforcement Act, represents a weak
attempt at improving our media, an uncreative policy that will harm our
creative community.
Mr. Speaker, we all believe in the need to reduce indecency in media.
Parents should not have to worry about what they might encounter with
their children when they sit down together to watch TV. But indecency
fines will not solve this problem because they do not address its root
cause: media concentration and a lack of competition.
When big media gets bigger, conglomerates move further away from
quality programming and the principles of diversity, localism and
competition, crucial for the service of public interest. Will monetary
penalties encourage return to these principles? I sincerely doubt it.
Instead, we need a competitive media environment that provides
viewers and listeners with real choices in their entertainment. We need
programming that respects the public and performers rather than
catering to the lowest common denominator and dumbing down our culture.
A consolidated media market controlled by a profit-driven conglomerate
is bound to offer cheaply made, shocking entertainment for the sake of
increasing viewership and making a spectacle of itself.
Our artists need to be able to work in an environment where
creativity is honored. This will never happen under a system of
censorship. Creators cannot read the FCC's minds on their definition of
indecency. We must work with our creative community to encourage
quality media content, not simply offer vague guidelines with high
consequences.
That is why I have supported making the fulfillment of public
interest obligations an element of the broadcast licensees' renewal
requirement and the restoration of the fairness doctrine. It is why I
encourage the FCC to think about the impact that media consolidation
has on media content and our national character as they begin rewriting
their ownership rules, rules that upset millions of Americans and
lawmakers on both sides of the aisle.
Mr. Speaker, the indecent media culture we witness today will not be
modified by simply increasing fines. It must be transformed through
less media consolidation and greater requirements to serve the public
interest.
I am sorely disappointed that both Houses have chosen the easy route
of increasing fines rather than making a serious attempt to curb
indecency by addressing the major problems in our media.
So I would urge my colleagues to vote against this bill, and let's
try over again.
Mr. MARKEY. Mr. Speaker, I have no other requests for time, and I
yield back the balance of my time.
Mr. UPTON. Mr. Speaker, I yield myself such time as I may consume.
I would just like to make a couple of closing comments. Again, I
thank the gentleman from Massachusetts for his help on this from the
start. It was in December 2003 I called him at his home in
Massachusetts and asked if he would like to co-author this with me.
With that support came the support of then-Chairman Tauzin and the
gentleman from the great State of Michigan (Mr. Dingell).
The four of us introduced this legislation. A week and a half before
the Super Bowl, we had our first hearing, in fact, before the Super
Bowl came about where it got a lot of publicity. I know all of us on
the committee and subcommittee when we held hearings were absolutely
disgusted with some of the trash that was said on the radio that was
fined. I would like to use a different word than ``trash'' or
``stuff,'' but we would probably get fined for doing that on the House
floor, and maybe our words would get taken down. I'm not sure. But it
was awful, particularly knowing that kids were listening to that kind
of talk.
It was a bipartisan effort. As I recall, I think we had a vote of 49-
1 to get that legislation through. I think the bipartisan spirit we
have had from the beginning, and I think our House bill was a little
better than what the Senate has here in S. 193, but we need to get it
done. That is why I was glad to work with the Senators on both sides of
the aisle. And I would note this, not a single Senator, not a single
one from any State, opposed the legislation that we are going to pass
with this bill, S. 193.
Mr. DINGELL. Mr. Speaker, I rise in support of S. 193, the
``Broadcast Decency Enforcement Act of 2005''.
More than a year ago, the House overwhelmingly passed a broad measure
to ensure that viewers and listeners would be properly protected from
indecent broadcasts over the public airwaves. The Senate has now sent
back just one piece of that more comprehensive measure.
The legislation before us will raise the maximum fine for indecent
broadcasts tenfold, from $32,500 to $325,000. Increasing the amount
that the Federal Communications Commission (FCC) can fine a company
that broadcasts obscene or indecent programming is important,
particularly given the growing size of these companies due to media
consolidation.
Raising the level of potential fines is a good first step, so I
support this measure. But it falls short of being a comprehensive
solution to hold the FCC's feet to the fire on this issue.
People who are offended by indecent broadcasts on the public airwaves
deserve prompt and thorough consideration of their complaints.
Previously, the FCC had let some complaints languish for years,
resulting in their dismissal. Unfortunately, delays continue. The
viewing and listening public still does not receive prompt evaluation
of their complaints, and the Commission's treatment of many consumer
indecency complaints remains haphazard.
The House last year approved a much stronger and more comprehensive
bill by a vote of 389 to 38. The bill would have increased the fines to
$500,000 and given the FCC additional tools to fight indecency over the
public airwaves. More importantly, it would have required the FCC to
act on consumer complaints within a specific timeframe. It would have
also made the Commission more accountable by requiring regular reports
to Congress on its enforcement activities. This reporting requirement
would have ensured that Congress was aware of any FCC action or
inaction regarding complaints from our constituents regarding indecent
broadcasts. The Senate bill does not take these steps to make the
Commission more responsive or accountable.
Consumers would have been better served if the House and Senate had
negotiated a compromise bill that included several of the provisions
from the House bill to keep the FCC accountable. Nonetheless, S. 193 is
a step in the right direction. As such, I support this bill and urge my
colleagues to do so as well.
Mr. GENE GREEN of Texas. Mr. Speaker, most of us remember Super Bowl
XXXVIII, but
[[Page H3391]]
not for the reason that most of us Houstonians would like.
The game was a great showcase for Houston and one of the best in
Super Bowl history. The New England Patriots edged out the Carolina
Panthers by a score of 32 to 29 in a wild fourth quarter that ended
with an Adam Vinatieri field goal with four seconds left.
Unfortunately, Americans remember that game for the offensive
halftime show featuring Justin Timberlake and Janet Jackson.
Performers can do whatever they like on their albums, or on
subscription services like HBO, and as a Member of Congress I swore an
oath to uphold the Constitution and protect all Americans' First
Amendment rights of freedom of speech and expression.
But public obscenity purely designed to shock people has no place on
primetime broadcast television using the public's airwaves.
Almost every American home has a television and there is nothing a
parent can do to protect against indecency on broadcast radio or
television.
American families should have the right to watch the Super Bowl
without expecting indecent performances, and the current FCC fines were
clearly not a deterrent. Therefore, this legislation increases the
fines for broadcast indecency by 10 times.
However, the Commission should only use this power against
blameworthy broadcasters. A $325,000 fine is a much bigger stick for
the FCC to use against indecent broadcasters, so the level of
responsibility of the FCC must also increase.
When an independent affiliate airs network programming that turns out
to be indecent, the FCC should only punish an affiliate if there was a
reasonable opportunity to review questionable taped material or reason
to know that such material was likely.
In cases where only the network knows what is going on the air, it
stands to reason that only the network should bear the burden for such
violations.
Section 503(b)(2)(D) allows the FCC to consider the circumstances of
a violation in determining the amount of a penalty. The Commission
should use that power wisely and recognize that you cannot deter
indecent programming by fining independent affiliates with no control
over the content.
Mr. GONZALEZ. Mr. Speaker, I rise to express my support for S. 193,
The Broadcast Decency Enforcement Act of 2006, our constituents should
expect that when they turn on their local broadcast television and
radio stations, they will not be subjected to obscene, indecent, and
profane material. I believe this legislation does take the necessary
steps to ensure that there is a sufficient deterrence to broadcasters
who are careless as to their responsibilities to the general public.
But, Mr. Speaker I am concerned that this legislation may fail to
take into sufficient account the economic conditions of a broadcaster.
There are numerous small broadcasters who serve small or niche market.
This is particularly true of minority owned stations or stations that
target the minority viewers. I urge the Federal Communications
Commission when it uses its power under Section 503(b)(2)(D) of the
Communications Act of 1934 to consider the size of the market that the
broadcaster serves and its ability to pay when assessing a fine for
airing questionable material, as this body approved when it passed the
companion House legislation to this bill--H.R. 310 several weeks ago.
I also believe that the Commission should consider the source of the
obscene, indecent, or profane programming when levying a fine. When a
local affiliate not owned or controlled by a network airs questionable
programming supplied by the network, the FCC should penalize the party
who was really at fault. If the local affiliate was not given a
reasonable time to review an offensive taped or scripted program before
it aired, or if it aired an offensive live or unscripted program
without reason to believe it was offensive, the fault arguably lies not
with the local affiliate but with the network that supplied the
program. Section 503(b)(2)(D) allows the Commission to adjust a penalty
based on the culpability of the violator, the circumstances of the
violation, or any other matters as justice requires. I believe that a
situation where a local affiliate was left ``in the dark'' about
obscene, indecent, or profane material in a program from the network
calls for just such an adjustment.
Thank you again, Mr. Speaker, for moving this important legislation
forward.
Mr. ACKERMAN. Mr. Speaker, I am continually amazed that defending our
Constitutionally guaranteed freedom of speech is such a lonely job in
the House of Representatives. I believe in decency and protecting
children as much as any Member, but what is at stake here is freedom of
speech and whether it will be nibbled to death by election-minded
politicians and self-righteous pietists.
If you don't believe that this so-called Broadcast Decency Act will
have a chilling effect on free speech, let's take a look at a few
examples of how the culture of censorship has spread to the airwaves
over the past few years.
Numerous ABC affiliates refused to commemorate Veteran's Day by
airing the movie ``Saving Private Ryan'' because they feared an FCC
fine. Ironically, ABC had previously aired unedited versions of the
WorId War II movie in 2001 and 2002 without incident.
Many PBS stations refused to air an episode of the children's show
``Postcards with Buster'' because Buster, an 8-year-old bunny, learned
how to make maple syrup from a Vermont family with two mothers.
CBS refused to air a political advertisement during the Super Bowl
because it was critical of President Bush's role in creating the
Federal deficit.
CBS and NBC refused to run a 30-second ad from the United Church of
Christ because it suggested that gay couples were welcome to their
church, and the networks felt that it was ``too controversial'' to air.
This is how free speech dies: with the pruning of self-satisfied
politicians and the whimpering of fearful citizens. These are just a
few examples that occurred before this ill-conceived bill has even been
signed into law. Broadcasters will certainly increase these practices
and bite their tongues when ``decency'' enforcers can slap them with a
$325,000 fine, multiplied by numerous stations. How much farther down
the slippery slope of censorship will we slide?
Even more galling is that this free-speech assault is coming from a
mere fragment of the public, one organization--the Parents Television
Council--representing the religious right and their far right-wing
political agenda. This organization, which is responsible for 99.9
percent of the so-called indecency complaints filed with the FCC,
boasts ``nearly 1 million members.'' True or not, while that may be a
sizable number for an individual organization, when compared to the
almost 300 million people currently living in the United States, it
really amounts to a small handful of people--less than one percent. Why
should this tiny population of scolds be allowed to censure what the
remaining 99.66 percent of us listen to?
It is not for this Congress to put limits on free speech. The public
decides what they want to listen to and what they want to hear. They
can change the channel, they can change the station, they can turn it
off. It is not just speech that we agree with and we think is right
that we have to tolerate. The true test of freedom of speech is if we
tolerate ugly speech, obnoxious speech, and speech that we disagree
with.
We need to defend our Constitution. We need to defend freedom of
speech, and that is really what is at stake here. Passing this bill is
a huge mistake and this vote will mark a very dark day in American
history. We are going down a slippery slope and no one can honestly say
where it will stop. A vote for this bill is a frontal assault on our
Constitution and the protections that it gives to the American people.
Mr. Speaker, I for one will be voting against this bill, and I urge
my colleagues to do the same.
Mr. UPTON. Mr. Speaker, I urge all of my colleagues to support this
when we take the vote, and I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Michigan (Mr. Upton) that the House suspend the rules
and pass the Senate bill, S. 193.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of
those present have voted in the affirmative.
Mr. UPTON. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this question will
be postponed.
____________________